Penn. man lost custody of kids, was imprisoned for 44 months for posting threatening lyrics about wife, cops

A case that will be heard by the Supreme Court is testing the limits of free speech when it comes to threatening jokes and comments on the internet.

I. Artistic Escape or Speech Crime?

The defendant in the case is Anthony Douglas Elonis (31) of Allenstown, Penn. In 2010 he quickly gained attention for his colorful posts to Facebook, Inc.'s (FB) social network following personal problems. The posts quickly spiraled out of control as Mr. Elonis' personal life collapsed. Tried and convicted in 2011 of making a number of threats via interstate networks, Mr. Elonis has served his sentence but he and his lawyers still want to prove his innocence, vindicating the father of two.

At stake is whether threatening-sounding posts to online sites like Facebook are protected under Constitutional free speech protections. In such cases many courts have argued punishments for "speechcrime" may be necessary, but even hardline courts agree that there may be a need for exemptions to protect the First Amendment rights of those engaging in satire or "artistic expression" and not making a true threat.

The issue is particularly hot as at least one of Mr. Elonis' posts quotes actors or musicians who were not charged for their own comments and internet postings.

Anthony Elonis found solace in a troubled time in his life by posting dark, violent sounding lyrics, he says. He insists the lyrics weren't meant to be taken seriously. [Image Source: Facebook]

For example, in a post from November 2010 he quoted the Virginian dark comedy troupe "The Whitest Kids U' Know" (WKUK). Writing under his musical alter ego "Tone Elonis," he modifies the words of the WKUK performance "It's Illegal to Say..." substituting "my wife" for "The President of the U.S." He wrote:

Did you know that it's illegal for me to say I want to kill my wife? It's illegal. It's indirect criminal contempt. It's one of the only sentences that I'm not allowed to say.... Art is about pushing limits. I'm willing to go to jail for my constitutional rights. Are you?

The post came two days after the Virginia resident's wife received a personal protection order (PPO) from a local court, but it proved eerily prophetic adding fuel to the fire and worsening Mr. Elonis' legal problems.

The roots of the rant began in May 2010 when his wife of 7 years, Tara Elonis, left him. A self proclaimed fan of "emo" music and Gilmore Girls, Ms. Elonis and her husband enjoyed happier times not long after their first child was born. The pair had married back when in high school when Tara had gotten pregnant with their son, Riley. In a post on a social network profile she gushes:

Hmm. My name is Tara and I just straight out rock. You all know it. I'm married (almost 3 years) and I have two kids, Riley and Emma. You can look at my pics to see them. I live right outside of Bethlehem, but I'd do anything to get out of here. Seriously. I love music and movies. And so on and so on.

By 2011 Riley was age 8 and the couple had also had a girl, Emma, age 7. And the pair's marriage was teetering on the brink of ruin, amid Mr. Elonis's accusations that his wife was cheating on him. As the pair's relationship fell on hard times, Tara Elonis filed for divorce and took the children to live with her father in Berks County.

Detroit rapper Eminem was an inspiration to Mr. Elonis. Much like Mr. Elonis, Eminem rapped about killing his wife and killing cops, but since he is famous he has been charged with no crime.
[Image Source: Earmilk]

Losing his wife and kids left Mr. Elonis despondent and borderline suicidal. Court documents state that he was regularly seen crying in front of coworkers. Then he had an epiphany. He would later testify:

I was basically listening to love songs and getting depressed. So I started listening to more violent music and it helped me in some way.

Inspired by rappers Eminem, Necro, and Insane Clown Posse -- artists whose lyrics regularly brush on hyper-violent murderous fantasies involving their rivals, lovers, ex-wives, and close relatives -- the resident of lower Saucon Township began posting prose and lyrics of his own to Facebook, under the monikers "Tone Elonis" or "Tone Dougie".

II. Threatening Lyrics About Wife -- Too Real?

Like his idols, Mr. Elonis' diatribes/lyrics targeted those he felt wronged him, although he insists they were cathartic jokes not promises of true violence. In an Oct. 10, 2010 post directed at his wife, he wrote:

If I only knew then what I know now, I would have smothered your ass with a pillow, dumped you in the back seat, left your body in Toad Creek and made it look like rape and murder.

In another post he wrote:

There’s one way to love you but a thousand
ways to kill you. I’m not going to rest until
your body is a mess, soaked in blood and dying
from all the little cuts. Hurry up and die, b**ch,
so I can bust this nut all over your corpse from
atop your shallow grave. I used to be a nice guy
but then you became a sl*t. Guess it’s not your
fault you liked your daddy raped you.
So hurry up and die, b**ch, so I can forgive you.

After that post, Tara Elonis (then 25) in November sought a personal protection-from-abuse order (PPO). She testified:

I felt like I was being stalked. I felt extremely afraid for me and my children and my family's lives.

Tara Elonis accused her husband of "stalking" her after he posted threatening lyrics about her on Facebook, after she left, taking the pair's kids. The pair divorced in 2012.
[Image Source: Badoo/http://k.7w7.us]

A judge agreed and issued an order barring Mr. Elonis from contact with his wife and kids, citing the posts as evidence. Mr. Elonis would subsequently post the WKUK-derived/inspired rant, writing:

Did you know that it’s illegal for me to say I
want to kill my wife?
It’s illegal.
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not
allowed to say.
Now it was okay for me to say it right then
because I was just telling you that it’s illegal for
me to say I want to kill my wife.
I’m not actually saying it.
I’m just letting you know that it’s illegal for me
to say that.
It’s kind of like a public service.
I’m letting you know so that you don’t
accidently go out and say something like that
Um, what’s interesting is that it’s very illegal to
say I really, really think someone out there
should kill my wife.
That’s illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that’s its own sentence.
It’s an incomplete sentence but it may have
nothing to do with the sentence before that.
So that’s perfectly fine.
Perfectly legal.
I also found out that it’s incredibly illegal,
extremely illegal, to go on Facebook and say
something like the best place to fire a mortar
launcher at her house would be from the
cornfield behind it because of easy access to a
getaway road and you’d have a clear line of
sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal.
Yet even more illegal to show an illustrated
diagram.
======[ __ ] =====house
: : : : : : : ^ : : : : : : : : : : : :cornfield
: : : : : : : : : : : : : : : : : : : :
: : : : : : : : : : : : : : : : : : : :
: : : : : : : : : : : : : : : : : : : :
######################getaway road
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle
of the night and they will lock me up.
Extremely against the law.
Uh, one thing that is technically legal to say is
that we have a group that meets Fridays at my
parent’s house and the password is sic simper
tyrannis.

That description, which would later be later characterized in court as a detailed description of how to kill his estranged wife, would later come back to haunt him.

III. Sexual Harassment Complaint, Facebook Post Led to His Firing

As his relationship was on the rocks, Mr. Elonis' work life was also crumbling. At the time he was working as "an operations supervisor and a communications
technician" of the local amusement park, Dorney Park & Wildwater Kingdom. Amber Morrissey filed a sexual harassment complaint against Mr. Elonis. The complaint led to him being demoted by his supervisor, Daniel Hall, the chief of security at Dorney Park.

Much as he did with his wife, Mr. Elonis turned to "artistic expression" to drown his sorrows at the situation. He posted a picture of Ms. Morissey he had taken at a haunted theme event the previous year. In the picture he was dressed as a demon and was holding a knife to Ms. Morrisey's throat, which had makeup blood. In the Facebook caption he wrote, "I wish."

After word of Tara Elonis's PPO and the threatening picture targeting Ms. Morissey reached Dan Hall, he took further action against his troubled employee by terminating him. This led to yet more Facebook rants later in Oct. 2010. The park was preparing at the time for its annual "Halloween Haunt" event. Mr. Elonis penned lyrics portraying a plan to carry out an attack on the park, terrorizing customers and staff, and killing many. He wrote:

Moles. Didn’t I tell ya’ll I had several? Ya’ll
saying I had access to keys for the fucking
gates, that I have sinister plans for all my
friends and must have taken home a couple.
Ya’ll think it’s too dark and foggy to secure
your facility from a man as mad as me. You
see, even without a paycheck I’m still the main
attraction. Whoever thought the Halloween
haunt could
be so f**king scary?

Ms. Morissey -- who saw the lyrics -- complained she felt so threatened she had picked out a spot to hide at the event should Mr. Elonis decide to carry out his dark lyrical threat.

IV. More Lyrics Target Law Enforcement Officers

His former supervisor Dan Hall had, had enough and informed local authorities in South Whitehall Township, where the park is located. Local, state, and federal authorities subsequently began to question Mr. Elonis and examine his Facebook. The police attention led to more lyrical fantasy from Mr. Elonis in which he sings/writes about killing Berks deputy sheriffs and state troopers.

In the rap lyric he threatens to bomb the local and state police, writing:

Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
And prison time will add zeroes to my
settlement
Which you won’t see a lick
Because you suck dog d*ck in front of children
****
And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff's
department
[link: Freedom of Speech, www.wikipedia.org]

He followed that with a post "joking" about shooting up a school. He commented:

That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
imagined
And hell hath no fury like a crazy man in a
kindergarten class
The only question is . . . which one?

"Tone Elonis" found himself in federal court after he allegedly threatened law enforcement officers with violent lyrics on Facebook. [Image Source: ABC]

The U.S. Federal Bureau of Investigation (FBI) began monitoring Mr. Elonis' posts after his supervisor notified them. Around the start of December, FBI Agent Denise Stevens -- who had been monitoring the Facebook posts -- paid a visit to Mr. Elonis' home with her fellow agent and spoke with him. Apparently incensed at the visit, Mr. Elonis would later that day write a post on Facebook, which he titled "Little Agent Lady." He wrote:

You know your sh*t’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the b**ch
ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms
of her partner

[laughter]

So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and
pat me down
Touch the detonator in my pocket and we’re all
goin’

[BOOM!]

The post brought a swift legal response from authorities.

V. Charged With Federal Crimes

On Dec. 10, 2010 federal authorities decided they had enough evidence to charge Mr. Elonis with five counts of transmitting threats in interstate commerce -- one count for the threat against his wife, one count for the threat against his coworkers, one count for the post about the school shooting, one count for the threat against local/state law enforcement, and one count for the threat against the FBI agent. According to 18 U.S. Code § 875:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

The law indicated that the maximum possible consecutive sentence for Mr. Elonis' speechcrime would be 25 years in federal prison. Tried by a jury in early 2011, Mr. Elonis was represented by Benjamin Cooper, a public defender.

A jury in 2011 found Mr. Elonis guilty of interstate threats, after a federal judge ordered the jury to consider all internet communications "interstate" communications, even if targeting local friends. [Image Source: AboveTheLaw]

Mr. Stengel began serving his time while the 3rd Circuit Court of Appeals heard his appeal. The 3rd Circuit considers Federal District Court appeals for Pennsylvania, New Jersey, Delaware, and the Virgin Islands.

The appeal began in June 2013 and in Sept. 2013 the appeals panel ruled to uphold the lower court's ruling [PDF]. One particularly controversial point discussed in the appeal ruling is the notion that all internet posts constitute "interstate transmissions" even if the primary audience is people in your state, as the communications are often routed back and forth to and from data centers in other states.

The Circuit judges write:

In United States v. MacEwan [a child pornography case]... because a Comcast witness testified it was impossible to know whether a particular transmission traveled through computer servers located entirely within Pennsylvania, or to any other server in the United States. Id. at 241-42. "[W]e conclude[d] that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to [the] user, the data has traveled in interstate commerce.” Id. at 244.

Elonis distinguishes MacEwan by stating that in that case the government presented evidence on how the internet worked. But the government’s evidence in MacEwan did not show that any one of the defendant’s internet transmissions traveled outside of Pennsylvania. We found that fact to be irrelevant to the question of interstate commerce because submitting data on the internet necessarily means the data travels in interstate commerce. Id. at 241. Instead, we held ...

Based on our conclusion that proving internet transmission alone is sufficient to prove transmission through interstate commerce, the District Court did not err in instructing the jury.

IV.
For the foregoing reasons we will uphold Elonis’s convictions under 18 U.S.C. § 875(c).

With the loss of the Circuit appeal, it appeared all might be lost for the defenders. Indeed Mr. Elonis served out his time and was quietly released last February.

VI. The Last Appeal

But there still was one avenue for Mr. Elonis to clear his name, however unlikely. Last year Mr. Elonis filed for a Writ of Certiorari -- an appeal before the Supreme Court of the United States (SCOTUS).

The issue is growing in importance as communication online by e-mail and social media has become commonplace. Modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended.

But despite the high profile support, the appeal was by no means guaranteed. The Supreme Court has already ruled in numerous cases over verbal or pictorial threats, such as the 2003 ruling in Virginia v. Black, in which the SCOTUS struck down a Virginia law against cross burning as overly broad, despite the act widely being perceived as a gesture of racial intimidation in the South. The case set part of the precedent that prosecutors had to navigate around at the District and Circuit Appeals Court levels in the Elonis case.

And while Mr. Elonis' lawyers complained that the Virginia v. Black ruling lacked clarity, going on to suggest that prosecutors interpretations in their clients case had been erroneous, such a tactic also wouldn't necessarily bear fruit. A similar appeal had been raised in 2013 over a threat on YouTube, and the SCOTUS had declined to hear that case.

Anthony Elonis, 30, will at last get his day in court before the Supreme Court to argue his innocence in the crime he served time for. [Image Source: Anthony Elonis]

But against the odds the high court announced on Mon. June 16, 2014 that it would hear Mr. Elonis' appeal. The appeal may offer clarification of a number of issues including whether internet communications are inherently "interstate", whether menacing internet satire is allowed, and what exactly the limits of colorful, violent fantasy lyrics are.

The ruling will likely have an impact on future cases regarding sites like Facebook and YouTube.

Where were the feds' concern when years ago, so-called rap artists were releasing songs with lyrics about killing cops & sexual assaults against women??? That "cat" has been out of the bag & running around loose for years, already....